Civil law company with limited liability

from Wikipedia, the free encyclopedia

In the case of a company under civil law with limited liability ( GbR mbH ), the shareholders want the liability to be limited to the company's assets.

Legal historical background

In the corporate law literature as well as in the case law, it was extremely controversial to what extent the BGB-Gesellschaft (§§ 705 ff. BGB) approximates a legally competent legal person .

While in other countries there was an equivalent form of society, e.g. B. in the USA the Limited Liability Company (LLC) has long been disputed in Germany whether the establishment of a partnership with limited liability (GbR mbH) is permissible. While advocates invoked freedom of association and freedom of contract , critics objected that this would circumvent the provisions on minimum capital in the limited liability company and that a contractual restriction of mandatory liability provisions was not possible; the partnership agreement is a contract to the detriment of third parties .

Since 1999 it has been decided by the highest court that the addition "mbH" has no effect and that the GbR mbH is treated like a civil law company in terms of liability . The Federal Court of Justice denied that - just like the appearance for a pre-GmbH as "GmbH" or "GmbH i. G." - the mere addition to the name could unilaterally limit liability, but only an individual contractual agreement with the other side of the contract. Since then, the GbR mbH has no more practical significance in Germany.

View of jurisprudence

In the meantime, the view is also held in jurisprudence that the company addition “mbH” is misleading and therefore inadmissible, since it suggests the participation of at least one GmbH.

Alternatives

As a substitute, foreign company forms were often used, with the British Limited (Ltd.) being particularly popular in the past due to the low start-up capital of £ 1 required. Due to the freedom of establishment in the European Union , the Ltd. branches are also set up in Germany, whereby the limitation of liability due to European regulations must also be recognized in Germany.

The Unternehmergesellschaft (UG) has existed in Germany since November 1st, 2008, which enables the establishment of a limited liability company with practically no minimum capital (only € 1 at the UG).

Web links

Individual evidence

  1. ↑ Limitation of liability in the BGB-Gesellschaft and representation right: "GbR mbH" zu BGH, judgment of September 27, 1999 - II ZR 371/98
  2. ↑ BGHZ 134, 333, 335
  3. ↑ BGH, judgment of September 27, 1999 - II ZR 371/98 = BGHZ 142, 315 and BGH, judgment of November 24, 2004 - XII ZR 113/01